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Friday, June 28, 2013

The Supreme Court Becomes Totalitarian

In the aftermath of Wednesday’s Supreme Court decision (which I discuss here), one important point has been overlooked by nearly everyone. I refer to the fact that the Supreme Court has made clear that without the intervention of government (in this case, the government of each state), there is no pre-political, existential state of affairs that mark certain types of same-sex relationships out as being marriage within a state of nature.

Although there are over a thousand references to marriage in federal laws and programs, the Supreme Court has now declared that the federal government cannot actually say what marriage means. The God-like authority to determine what makes a marriage a marriage, and by extension what makes a family a family, is now up to each individual state. But by declaring that each state can determine for itself which collections of individuals constitute a ‘family’, the Court has implied that both marriage and family are little more than legal constructs at best, and gifts from government at worst. In the former case, marriage and family lose their objective fixity; in the latter case, we all become wards of the state.

For consider, if the meaning of marriage did have an objective fixity prior to positive law, then it would make no more sense to let the states define it than it would to let them define what is meant by the colour red in the traffic code.

Properly understood, heterosexual marriage exists in nature and is then recognized by the state on the basis of intrinsic goods attached to it; by contrast, homosexual marriage is an abstract legal entity with no natural or existential existence. Since neither consummation nor biologically-derived intrinsic goods are viable concepts among same-sex couples, it follows that the only way a consensual relationship between two people of the same sex can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity.

Once we appreciate this fact, we see that same-sex ‘marriage’ is actually the totalitarian option. Once gay ‘marriage’ is introduced into a state, it undermines the integrity of every family and every marriage in the nation by rearranging the family’s relationship to government. Same-sex marriage would rearrange the relationship between family and state by making our most vital connections merely the result of positive law. For without the mechanisms of the state to confer the status of marriage upon two members of the same sex, there are no acts that organically mark their union out as being a specifically marital one. The existential reality of the relationship, which is usually explained in terms of a commitment of love between two consenting adults, does not itself distinguish that relationship from numerous other sorts of loving relationships that exist in this world. So what is it that sets this type of relationship apart to make it ‘marital’? Again, the answer is that it can only be the state.

But here’s the rub: once we concede that same-sex ‘marriage’ is purely the creation of positive law, then for these ‘marriages’ to be truly equal to heterosexual ones, we would have to acknowledge that EVERY marriage and family is post-political institutions rather than pre-political institutions. This concedes to the state the power to determine what collections of individuals are a marriage or a family, rather than acknowledging that the state merely recognizes a reality that precedes itself and exists within a state of nature.

Ironically, by their refusal to acknowledge that the federal government can actually recognize a specific meaning to the word ‘marriage’, the Supreme Court acted in the most totalitarian way conceivable, for once again it implies that our most vital connections are merely the result of positive law. At first the significance of this is purely symbolic and abstract, but it cannot remain so for long. Eventually, the ubiquitous effects of this rearrangement cannot but be felt at every level of family life.

Consider, when a family sits down at the table to eat together, there is a huge practical difference if they think they are only a family because of bonds created by the state vs. if they think they are a family because of bonds that are natural and pre-political. When a son says, “that’s my Dad” or a man says “that’s my wife”, the meaning is completely different if you think these relationships are purely legal constructs instead of natural, pre-political realities. Canadian Douglas Farrow gave further examples of these ubiquitous effects after your nation legalized same-sex ‘marriage.’ In his article ‘Why Fight Same-Sex Marriage?’ he commented: “Six years ago, when same-sex marriage became law in Canada, the new legislation quietly acknowledged this [that family is nothing more than a legal construct]. In its consequential amendments section, Bill C-38 struck out the language of ‘natural parent,’ ‘blood relationship,’ etc., from all Canadian laws. Wherever they were found, these expressions were replaced with ‘legal parent,’ ‘legal relationship,’ and so forth. That was strictly necessary. ‘Marriage’ was now a legal fiction, a tool of the state, not a natural and pre-political institution recognized and in certain respects (age, consanguinity, consent, exclusivity) regulated by the state.”